Attorney General Charity Clark has released a formal opinion regarding Governor Phil Scott’s Executive Order 06-25, which focuses on promoting housing construction and rehabilitation in Vermont. The opinion was issued at the request of Senate President Pro Tem Phil Baruth and House Speaker Jill Krowiniski, who sought clarification on whether the executive order oversteps the Governor’s authority by altering existing law.
The Attorney General’s Office is responsible for advising state officials on legal matters when asked. While informal opinions are frequently provided, formal opinions are uncommon. According to the Attorney General’s Office, this formal opinion was necessary due to a disagreement among elected leaders that could have significant legal implications for the state. Courts have previously determined that such opinions from the Attorney General are advisory in nature and do not resolve legal disputes as a court would.
In her statement, Attorney General Clark said: “The formal opinion issued today concludes that the Governor’s executive order exceeds authority if it is meant to immediately change law, but the Governor’s policy goals could potentially be advanced through rulemaking without exceeding his legal authority. Specifically, most sections of the executive order are lawful because they can be implemented consistent with statutes. There are, however, two sections of the executive order – one concerning the regulation of wetlands and one related to building energy standards – which are unlawful if they are intended to immediately change law without first following the agency rulemaking process under Vermont’s Administrative Procedures Act.”
Earlier this month, Vermont’s Agency of Natural Resources began pursuing changes to wetland regulations using the established rulemaking process.
This marks the first time since 2014 that a formal published opinion has been issued by Vermont’s Attorney General. The last such opinion addressed questions about campaign finance laws after legislative amendments.
Formal and selected informal opinions from 2000 onward can be accessed through the Attorney General’s website.
